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Should the John Doe probe into recall elections be halted?

Madison — Three unnamed people have asked the Wisconsin Court of Appeals to temporarily halt a secret investigation of campaign fundraising and spending during Wisconsin's recent recall elections.

Madison attorney Dean Strang filed the five motions Thursday, according to online court records. The filings name special prosecutor Francis Schmitz and initially namedretired Kenosha County Circuit Judge Barbara Kluka, who was originally in charge of the investigation.

Copies of the court records were not available because Strang has filed motions to seal the petitions and related records. The filings, called petitions for supervisory writs, are requests that higher courts review how the investigation is being conducted.

Strang is seeking to stay the investigation and also has filed motions suggesting the matter be sent to the state Supreme Court. For now, the cases are before the Madison-based Court of Appeals panel.

Milwaukee County Assistant District Attorney Bruce Landgraf referred questions to Schmitz, who did not return calls.

Sources have said the investigation — first disclosed by the Milwaukee Journal Sentinel — has spread to at least five counties and is looking at whether such conservative groups as the Wisconsin Club for Growth coordinated illegally with GOP candidates or others during the 2011 and 2012 recall races. In the most expensive contest, Gov. Scott Walker beat back an attempt by Democrats to remove him from office last year.

Strang filed his litigation just before Eric O'Keefe of the Wisconsin Club for Growth was quoted in a Wall Street Journal opinion piece saying he received a subpoena in October in the John Doe investigation. John Doe investigations allow prosecutors to work in secret while compelling witnesses to turn over documents and give testimony.

The Wall Street Journal named an array of conservative organizations as being involved in some way, including Walker's campaign, business lobbying group Wisconsin Manufacturers & Commerce and the Republican Governors Association. The newspaper said it had seen two subpoenas in the investigation.

O'Keefe did not respond to interview requests from the Journal Sentinel.

Motives questioned

What is not clear is why the secret investigation appears to be looking only at conservative groups and not labor unions or others who backed Democrats in the recall elections. This has prompted some on the right to suggest the probe is a partisan witch hunt.

James Bopp Jr., who has a national reputation for representing conservative clients in free speech and other political cases, said it was appropriate to have the prosecutors covered by a secrecy order but not the subpoena recipients.

"The victims of the investigation do have First Amendment rights and the gag order seriously compromises their ability to defend themselves," said Bopp, who declined to say if he had a client in the case. He is not among the attorneys joining in the filings to temporarily halt the investigation.

In addition to Peterson and Schmitz, the filings name the chief judges for the judicial districts in each of those counties. Those judges did not return calls or declined to comment Tuesday.

"If there is a John Doe, I could not have a comment on that," said Rock County Circuit Judge James Daley, who is chief judge of the district that includes Dane County.

The unnamed individuals at the center of the appeals court case are being represented by some top-level national attorneys.

Michael J. Bresnick — a partner at the Washington, D.C., law firm of Stein Mitchell Muse & Cippollone — declined to say who his client was. Bresnick, a former federal prosecutor, recently spent two years as the executive director of President Barack Obama's Financial Fraud Enforcement Task Force.

The law firm of Graves Garrett LLC in Kansas City, Mo., was listed in online court records as representing another one of the unnamed petitioners. A phone message left at the firm Tuesday seeking comment from attorneys Todd Graves or Edward Greim wasn't immediately returned.

On the firm's website, Graves is listed as a former U.S. attorney for the western district of Missouri whose areas of expertise include political speech and election law as well as white-collar criminal defense.

New judge in case

On Monday, Peterson said he had been appointed by court administrators to preside over the secret criminal case.

"I can confirm that I'm the John Doe judge," Peterson said. "But that's all I'm going to say."

Peterson, 67, has been acting as a reserve judge in Eau Claire County since retiring last year as a member of the Court of Appeals panel in Wausau. He was elected three times to that post without opposition. He previously spent 16 years as an Eau Claire County Circuit judge.

It was not known whether he is a political conservative or liberal. Peterson confirmed that he did not sign any of the recall petitions.

Initially led by Milwaukee County prosecutors, the investigation is now being headed up by Schmitz, who spent nearly 30 years as a federal prosecutor and was once a finalist for U.S. attorney in Milwaukee during President George W. Bush's administration.

Documents released in response to an open records request show that Kluka was paid only $445.15 — the equivalent of one day's work — plus $67.90 in travel expenses for overseeing the case, which was opened last year. The records did not say whether she was paid for portions of several days or for just a single day.

Several criminal defense lawyers said the small sum would suggest that prosecutors are not putting many witnesses on the stand to testify in the secret proceeding.

"This must be primarily a paper investigation so far," said a Wisconsin attorney with experience in John Doe investigations.

By comparison, former Appeals Court Judge Neal Nettesheim was paid $55,482 to preside over the lengthy John Doe investigation of Walker's current and former aides, newly releasedrecords show.

Six individuals — including three former Walker aides, an appointee and a major campaign contributor — were convicted of criminal charges as a result of that probe.

Walker has refused to say whether he, his attorneys or his campaign or state staff members have been contacted by prosecutors as part of what is being dubbed John Doe II.

About Patrick Marley

Patrick Marley covers state government and state politics. He is the author, with Journal Sentinel reporter Jason Stein, of "More Than They Bargained For: Scott Walker, Unions and the Fight for Wisconsin.”

About Jason Stein

Jason Stein covers the state Capitol and is the author with his colleague Patrick Marley of "More than They Bargained For: Scott Walker, Unions and the Fight for Wisconsin." His work has been recognized by journalism groups such as the American Society of News Editors, the Society of American Business Editors and Writers, and the Association of Capitol Reporters and Editors.